Citation Nr: 1019430
Decision Date: 05/26/10 Archive Date: 06/09/10
DOCKET NO. 07-00 333 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Houston,
Texas
THE ISSUE
Entitlement to an initial rating in excess of 30 percent for
posttraumatic stress disorder (PTSD).
REPRESENTATION
Appellant represented by: Texas Veterans Commission
ATTORNEY FOR THE BOARD
T. M. Gillett, Associate Counsel
INTRODUCTION
The Veteran served on active duty from August 1993 to August
1996, and had additional periods of reserve service.
This matter comes before the Board of Veterans' Appeals
(Board) from a January 2006 rating decision from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Houston, Texas, which granted service connection for PTSD and
assigned a 10 percent evaluation. The Veteran filed a Notice
of Disagreement in February 2006. In November 2006, the RO
increased the disability rating to 30 percent disabling,
effective September 7, 2004, the date of the claim. The
Veteran is appealing the rating assigned for her disorder.
During the pendency of this appeal, in November 2006, the
Board granted the Veteran's application to reopen her claim
of entitlement to service connection for a right lumbar
strain and denied the reopened claim. In the same decision,
the Board remanded the Veteran's claim of service connection
for a left knee sprain to the Appeals Management Center (AMC)
for further development.
In a May 2007 rating decision, the AMC granted service
connection for a left knee chronic musculoligamentous strain
and assigned a 10 percent disability rating effective
February 26, 2003. As this was a full grant of the Veteran's
claim, the issue of service connection for a left knee strain
is no longer in appellate status and is not before the Board.
See 38 U.S.C.A. § 7105 (West 2002 & Supp. 2009). In July
2007, however, the Veteran filed a Notice of Disagreement
regarding the 10 percent evaluation assigned for the left
knee disability. In March 2009, the RO issued a Statement of
the Case, but the Veteran never perfected the appeal by
filing a Substantive Appeal. As such, this matter is not in
appellate status and is not before the Board. See
38 U.S.C.A. § 7105.
The Veteran did not request a hearing before the Board.
FINDINGS OF FACT
1. Prior to August 28, 2009, the objective medical evidence
indicates that the Veteran's PTSD disorder was not manifested
by circumstantial, circumlocutory, or stereotyped speech;
panic attacks more than once a week; difficulty in
understanding complex commands; impairment of short and long-
term memory (e.g., retention of only highly learned material,
forgetting to complete tasks); impaired judgment; and
impaired abstract thinking.
2. From August 28, 2009, the objective medical evidence
indicates that the Veteran's PTSD disorder was characterized
mostly by panic attacks more than once a week; difficulty in
understanding complex commands; impairment of short and long-
term memory (e.g., retention of only highly learned material,
forgetting to complete tasks); and impaired abstract
thinking.
CONCLUSIONS OF LAW
1. Prior to August 28, 2009, the criteria for an initial
rating in excess of 30 percent for PTSD have not been met.
38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp.
2009); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7,
4.130, Diagnostic Code 9411 (2009).
2. From August 28, 2009, the criteria for a rating of 50
percent, but no higher, for PTSD have been met. 38 U.S.C.A.
§§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38
C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.130,
Diagnostic Code 9411 (2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. The Veterans Claims Assistance Act of 2000 (VCAA)
On November 9, 2000, the President signed into law the
Veterans Claims Assistance Act of 2000 (VCAA). See Pub. L.
No. 106-475, 114 Stat. 2096 (2000), codified at 38 U.S.C.A.
§§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2009). The
VCAA provides, among other things, for notice and assistance
to VA claimants under certain circumstances. VA has issued
final rules amending its adjudication regulations to
implement the provisions of the VCAA. See generally 38
C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). The
intended effect of these regulations is to establish clear
guidelines consistent with the intent of Congress regarding
the timing and the scope of assistance VA will provide to a
claimant who files a substantially complete application for
VA benefits or who attempts to reopen a previously denied
claim.
a. Duty to Notify. VA has a duty to notify the appellant of
any information and evidence needed to substantiate and
complete a claim. 38 U.S.C.A. §§ 5102, 5103. In order to
meet the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R.
§ 3.159(b), VCAA notice must (1) inform the claimant about
the information and evidence necessary to substantiate the
claim; (2) inform the claimant about the information and
evidence that VA will seek to provide; and (3) inform the
claimant about the information and evidence the claimant is
expected to provide. VCAA notice should be provided to a
claimant before the initial unfavorable agency of original
jurisdiction (AOJ) decision on a claim. See Pelegrini v.
Principi, 18 Vet. App. 112 (2004).
Additionally, on March 3, 2006, the United States Court of
Appeals for Veterans Claims (Court) issued a decision in
Dingess v. Nicholson, 19 Vet. App. 473 (2006), that held that
the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and
38 C.F.R. § 3.159(b) apply to all five elements of a service
connection claim. Those five elements include (1) the
Veteran's status; (2) the existence of a disability; (3) a
connection between the Veteran's service and the disability;
(4) the degree of disability; and (5) the effective date of
the disability. The Court held that upon receipt of an
application for a service connection claim, 38 U.S.C.A. §
5103(a) and 38 C.F.R. § 3.159(b) require VA to review the
information and the evidence presented with the claim, and to
provide the claimant with notice of what information and
evidence not previously provided, if any, will assist in
substantiating or is necessary to substantiate the elements
of the claim as reasonably contemplated by the application.
Id. at 486. This notice must also inform the Veteran that a
disability rating and an effective date for the award of
benefits will be assigned if service connection is granted.
Id.
The Board finds that the November 2004 VCAA letter
substantially satisfied the provisions of 38 U.S.C.A. §
5103(a). The appellant was informed about the information
and evidence not of record that was necessary to substantiate
her claim; the information and evidence that VA would seek to
provide; and the information and evidence the claimant was
expected to provide. A September 2006 letter also provided
the information required by Dingess.
In Vazquez-Flores v. Peake, 22 Vet. App. 137 (2008), the
Court held that more specific notice was necessary for an
increased rating claim, to include providing the applicable
rating criteria. Because the appeal for an initial
compensable rating for the Veteran's PTSD disability is a
downstream issue from that of service connection, Vasquez
notice was not required when the RO developed this claim. See
VAOPGCPREC 8-2003 (Dec. 22, 2003); Dingess v. Nicholson, 19
Vet. App. at 491. Moreover, Vazquez-Flores was recently
overruled in part, eliminating the requirement that such
notice must include information about the diagnostic code
under which a disability is rated, and notice about the
impact of the disability on daily life. See Vazquez-Flores
v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).
Also, the evidence does not show, nor does the appellant
contend, that any notification deficiencies, with respect to
either timing or content, have resulted in prejudice.
Although the appellant does not have the burden of showing
prejudice, the record raises no plausible showing of how the
essential fairness of the adjudication was affected.
b. Duty to Assist. The Board finds that all necessary
assistance has been provided to the appellant. The evidence
of record indicates that VA acquired the Veteran's service
treatment and VA treatment records to assist the appellant
with her claim. There is no indication of any additional
relevant evidence that has not been obtained. As VA provided
thorough VA examinations in January 2006 and August 2009,
there is no duty to provide an additional psychiatric
examination or medical opinion. 38 U.S.C.A. § 5103A(d); 38
C.F.R. § 3.159(c)(4).
In view of the foregoing, the Board finds that VA has
fulfilled its duty to notify and assist the appellant in the
claim under consideration. Adjudication of the claim at this
juncture, without directing or accomplishing any additional
notification and/or development action, poses no risk of
prejudice to the appellant. Bernard v. Brown, 4 Vet. App.
384, 394 (1993).
b. Factual Background. The Veteran essentially contends
that her service-connected PTSD disorder is manifested by
symptomatology more severe than that contemplated by her
currently assigned 30 percent rating.
In an April 2005 statement, the Veteran indicated that she
experienced depression resulting from an in-service physical
assault. She stated that, as a result of the assault, she
had difficulty being touched by others. If anyone, including
her husband, were to touch her by surprise, she would respond
with anger or violence. She indicated that this caused a
great deal of trouble in her marriage. Regarding her
employment, she stated that her current supervisor was
abusive in his dealings with women. In dealing with him, she
was forced to relive the horror of her experiences in
service.
In an April 2005 VA treatment record, the Veteran reported
having difficulty with concentration. She stated she had low
energy and was socially isolated. She complained of crying a
lot and feeling sad most of the time. The Veteran reported
having one episode of panic-like symptoms, but denied
experiencing any "panic attacks." Upon examination, the
examiner noted that the Veteran was well-groomed and made
intermittently good eye contact. Her speech was normal and
thought process was logical and goal-oriented. Her thought
content was normal, and there were no hallucinations or
illusions. The Veteran's affect was tearful, somewhat
labile, and sad. Her mood was depressed. The Veteran was
alert and oriented to person, place and time, and her memory
was intact. Abstraction abilities were present, and insight
and judgment were fair. After examination, the examiner
diagnosed a major depressive disorder and PTSD, and
characterized the Veteran as having obsessive compulsive
traits, such as orderliness, stubbornness, and needing to be
in control. The Global Assessment of Functioning (GAF) score
was 55.
In a June 2005 letter, the Veteran's spouse stated that his
wife would break out in violent rages because she believed
that everyone was trying to hurt her. He stated that her at-
work supervisor reminded her of the person who assaulted her
during service, thereby worsening her anger. He indicated
that, as a result of her disorder, his wife would not accept
phone calls or go to social gatherings.
In a January 2006 VA psychiatric examination report, the
Veteran stated that she had difficulty dealing with anyone
touching her on the neck. She reported that she had
experienced difficulty sleeping due to nightmares for ten
years and mental problems for nine years. She characterized
her symptoms as fear of being approached from behind,
problems in her marriage, and mood swings fluctuating between
anger and rage. She reported having frequent crying
episodes, difficulties with male supervisors, and problems
getting close to her husband. She also stated that she drank
alcohol to numb her feelings. Upon examination, the examiner
noted the following: re-experiencing of the in-service
assault; avoidance of stimuli reminding her of the assault;
lack of intimacy with her husband; persistent, markedly
diminished interest or participation in significant
activities; persistent feelings of detachment or estrangement
from others, especially men; daily difficulty falling or
staying asleep; persistent irritability or outbursts of
anger, including with her husband; persistent exaggerated
startle response when men approach her; and persistent
hypervigilance regarding an abusive pattern in men. The
examiner noted that the Veteran's orientation was within
normal limits. Her appearance, hygiene, and behavior were
appropriate. Affect and mood were normal, and communication
and speech were within normal limits. Panic attacks were
absent, and there were no indications of delusions,
hallucinations, or obsessional rituals. Thought processes
were appropriate, judgment was not impaired, and abstract
thinking was normal. Memory was within normal limits, and
suicidal/homicidal ideation was absent. The diagnosis was
moderate PTSD, with severe inability to socialize and marital
issues. The examiner, however, also stated that the Veteran
was able to establish and maintain effective work and social
relationships. The GAF score was 65.
In a December 2006 VA treatment record, the Veteran reported
that she had stopped taking Prozac for her mental disorders.
She recalled how a co-worker had threatened to shoot her
seven years earlier, and she did not believe that this
behavior was appropriate. She stated that this caused her
frustration which she feared would carry over to her job.
She reported that her sleep was "OK," but indicated that
she still had nightmares. She reported having a reduced sex
drive. She denied suicidal or homicidal ideation. Upon
examination, the examiner found the Veteran to be alert,
cooperative, well-groomed, and dressed appropriately. Her
speech was normal, and her mood was slightly angry. Her
affect was appropriate/congruent to her mood, and her thought
production was normal. Her thought process was coherent and
goal-oriented, and her judgment and insight were intact.
There were no signs of preoccupation, delusions,
suicidal/homicidal ideation, or poverty of thought. The
diagnosis was depression, due to frustration with employment.
In her December 2006 substantive appeal, the Veteran stated
that her last two supervisors at her place of employment were
men. She reported that her feelings of being controlled by
men impaired her ability to bond or trust them, resulting in
a tense and strained working relationship. She indicated
that this had prevented her from establishing meaningful work
relationships and hindered her opportunities for career
advancement. She stated that being unable to control who her
supervisor would be and for how long they would be in that
position would often put her into a state of panic. She
stated that she had been seen for chest pains and job-related
stress due to having to meet alone with her bosses.
In a March 2007 VA treatment record, the Veteran reported
experiencing panic attacks once per month, especially if
someone approached her from behind and tried to touch her.
The GAF score was 55.
In a November 2007 VA treatment record, the Veteran reported
being under stress due to her job and dealing with a very
difficult co-worker. She indicated feeling recent headaches
and dizziness, but denied chest pains or palpitations.
In a November 2007 statement, the Veteran indicated that she
had been expressing aggression at work, resulting in
disciplinary actions against her. She reported that she
would become angry with her co-workers and managers and would
sometimes not be able to explain the reasons for her anger.
She stated that she would go on rage-filled "episodes" two
to three times per week. She indicated that she would
envision throwing books and files across the room when
someone made her mad.
In a February 2008 statement, the Veteran reported that she
felt, at times, that she was out of control at work and in
her personal life due to feelings of rage. She stated that
she had missed a lot of work due to feelings of sadness and
unhappiness. She reported that her sleep was broken by
racing thoughts and nightmares, leaving her exhausted upon
waking. She indicated having anxiety attacks which were
increasing in frequency.
In a February 2008 VA treatment record, the Veteran stated
that she was experiencing difficulty sleeping, anxiety
attacks, and headaches. The Veteran's affect was mildly
constricted and her mood was somewhat anxious/dysphoric. The
Veteran's speech, however, was normal; her thoughts were
normal as to process and content; her insight was good; and
her judgment was intact.
In a November 2008 statement, the Veteran stated that she was
experiencing suicidal thoughts and feelings. She indicated
that her frequent headaches were interfering with her daily
life. She noted that she was out of medication.
In an August 2009 VA psychiatric examination report, the
Veteran stated that she would have intrusive memories of the
in-service assault every other day. Upon examination, the
examiner found that orientation was within normal limits, and
appearance and hygiene were appropriate. Her eye contact was
poor, and her affect and mood indicated mood swings from
depression to irritability. Communication and speech were
normal, but her attention and focus were impaired. Panic
attacks occurred more than once a week. The Veteran
displayed a moderate impairment of short and long-term
memory, including retention of only highly learned material
and forgetting to complete tasks. She experienced passive
thoughts of death, but homicidal ideation was absent. There
was no history of delusions, hallucinations or obsessional
rituals. Thought processes were impaired as the Veteran had
problems reading and understanding directions. The diagnoses
were PTSD and a major depressive disorder. The GAF score was
50.
b. Law and Regulations. Disability evaluations are
determined by evaluating the extent to which a Veteran's
service-connected disability adversely affects their ability
to function under the ordinary conditions of daily life,
including employment, by comparing their symptomatology with
the criteria set forth the in the Schedule for Rating
Disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate
diagnostic codes identify various disabilities and the
criteria for specific ratings. If two disability evaluations
are potentially applicable, the higher evaluation will be
assigned if the disability picture more nearly approximates
the criteria required for that evaluation. Otherwise, the
lower rating will be assigned. 38 C.F.R. §§ 4.1, 4.7. After
careful consideration of the evidence, any reasonable doubt
remaining will be resolved in favor of the Veteran. 38
C.F.R. § 4.3.
Where the appeal arises from the original assignment of a
disability evaluation following an award of service
connection, as in this case, the severity of the disability
at issue is to be considered during the entire period from
the initial assignment of the disability rating to the
present time. Separate ratings can be assigned for separate
periods of time based on the facts found, a practice known as
"staged" ratings. See Fenderson v. West, 12 Vet. App. 119
(1999).
PTSD is evaluated under the general rating formula for mental
disorders. See 38 C.F.R. § 4.130, Diagnostic Code 9411.
Under this general rating formula, a 30 percent evaluation is
warranted where the evidence shows occupational and social
impairment with occasional decreases in work efficiency and
intermittent periods of inability to perform occupational
tasks (although generally functioning satisfactorily, with
routine behavior, self-care, and conversation normal), due to
such symptoms as depressed mood, anxiety, suspiciousness,
panic attacks (weekly or less often), chronic sleep
impairment, and mild memory loss (such as forgetting names,
directions, recent events).
A 50 percent evaluation is warranted where the evidence shows
occupational and social impairment with reduced reliability
and productivity due to such symptoms as flattened affect;
circumstantial, circumlocutory, or stereotyped speech; panic
attacks more than once a week; difficulty in understanding
complex commands; impairment of short- and long-term memory
(e.g., retention of only highly learned material, forgetting
to complete tasks); impaired judgment; impaired abstract
thinking; disturbances of motivation and mood; and difficulty
in establishing and maintaining effective work and social
relationships.
A 70 percent evaluation is warranted where the evidence shows
occupational and social impairment, with deficiencies in most
areas, such as work, school, family relations, judgment,
thinking, or mood, due to such symptoms as suicidal ideation;
obsessional rituals which interfere with routine activities;
speech intermittently illogical, obscure, or irrelevant;
near- continuous panic or depression affecting the ability to
function independently, appropriately and effectively;
impaired impulse control (such as unprovoked irritability
with periods of violence); spatial disorientation; neglect of
personal appearance and hygiene; difficulty in adapting to
stressful circumstances (including work or a worklike
setting); inability to establish and maintain effective
relationships.
Also, the symptoms recited in the criteria in the rating
schedule for evaluating mental disorders are "not intended
to constitute an exhaustive list, but rather are to serve as
examples of the type and degree of the symptoms, or their
effects, that would justify a particular rating." Mauerhan
v. Principi, 16 Vet. App. 436, 442 (2002). In adjudicating a
claim for an increased rating, the adjudicator must consider
all symptoms of a claimant's service-connected mental
condition that affect the level of occupational or social
impairment. Id. at 443.
The Global Assessment of Functioning (GAF) scale reflects the
psychological, social and occupational functioning on a
hypothetical continuum of mental health-illness. Diagnostic
and Statistical Manual of Mental Disorders 32 (4th ed. 1994).
See Carpenter v. Brown, 8 Vet. App. 240, 243 (1995). A GAF
score of 61 to 70 is defined as some mild symptoms or some
difficulty in social, occupational, or school functioning,
but generally functioning pretty well, with some meaningful
interpersonal relationships. A GAF from 51 to 60 is defined
as moderate symptoms (e.g., flat affect and circumstantial
speech, occasional panic attacks) OR moderate difficulty in
social, occupational, or school functioning (e.g., few
friends, conflicts with co-workers). A GAF of 41 to 50 is
defined as serious symptoms (e.g., suicidal ideation, severe
obsessional rituals, frequent shoplifting) OR any serous
impairment in social, occupational, or school functioning
(e.g., no friends, unable to keep a job). DSM-IV; Richard v.
Brown, 9 Vet. App. 266, 267 (1996).
c. Analysis.
(i) Prior to August 28, 2009. The Board finds that, prior
to August 28, 2009, the objective evidence does not indicate
that the Veteran's PTSD was manifested by symptomatology
equivalent to that required for a rating greater than 30
percent. During this period, treatment records indicate that
the Veteran experienced difficulty in maintaining effective
work and social relationships. As noted throughout the
record, the Veteran's PTSD disorder made it extremely
difficult to deal with male supervisors, and resulted in
feelings of anger towards her co-workers. The evidence also
showed that the Veteran experiences mood disturbances,
specifically periods of anger and depression. Moreover, in
an April 2005 VA treatment record, the examiner noted that
the Veteran displayed a tearful, labile and sad affect. This
does not, however, meet the criteria for a flattened affect,
necessary for the next higher 50 percent rating under
Diagnostic Code 9441. Also, prior to August 28, 2009, the
evidence does not indicate symptomatology more nearly
matching the most of the requirements needed for next higher
50 percent rating, specifically circumstantial,
circumlocutory, or stereotyped speech; panic attacks more
than once a week; difficulty in understanding complex
commands; impairment of short- and long-term memory (e.g.,
retention of only highly learned material, forgetting to
complete tasks); impaired judgment; and impaired abstract
thinking. The Board notes that the Veteran's GAF scores,
noted in her treatment records, varied from a low of 55,
denoting moderate symptomatology and a high of 65, denoting
mild symptomatology. Considering the inconsistent GAF scores
and the lack of symptomatology required for a next higher
rating, the Board finds that the preponderance of evidence
does not indicate that the Veteran's PTSD disorder meets the
criteria for a 50 percent rating under Diagnostic Code 9411.
(ii) From August 28, 2009. The Board finds that, from
August 28, 2009, the date of the last VA psychiatric
examination, the objective evidence indicates that the
Veteran's PTSD is manifested by symptomatology meeting the
criteria for a 50 percent rating under Diagnostic Code 9411.
During this examination, the examiner noted that the Veteran
experienced panic attacks more than once a week; difficulty
in understanding complex commands; impairment of short- and
long-term memory (e.g., retention of only highly learned
material, forgetting to complete tasks); impaired judgment;
impaired abstract thinking; disturbances of motivation and
mood; and extreme difficulty in establishing and maintaining
effective work and social relationships. As such, the Board
finds that the criteria for a 50 percent rating, effective
from the date of the last examination, have been met.
The Board also finds that, from August 28, 2009, the
Veteran's PTSD disorder is not manifested by symptomatology
equivalent to that required for a rating greater than 50
percent. The August 2009 examiner found that the Veteran
experienced an inability to establish and maintain effective
work and social relationships due to her psychiatric
disorder, one of the symptoms required for the next higher 70
percent rating under Diagnostic Code 9411. The Board,
however, finds that the evidence does not indicate that the
Veteran experienced most of the symptoms required for the
next higher rating. For example, although the Veteran
expressed some passive thoughts regarding death, the
objective medical evidence contains no indication of suicidal
ideation, a criterion for a 70 percent rating under
Diagnostic Code 9411. Moreover, the examiner did not
indicate that the Veteran experienced: obsessional rituals
which interfere with routine activities; speech
intermittently illogical, obscure, or irrelevant; near-
continuous panic or depression affecting the ability to
function independently, appropriately and effectively;
spatial disorientation; or neglect of personal appearance and
hygiene. The Board notes that the August 2009 VA examiner
assigned a GAF score of 50, denoting severe impairment of
social and occupational functioning. The Board, however,
notes that the Veteran does not display many of the noted
characteristics of such impairment, such as suicidal
ideation, severe obsessional rituals, and an inability to
keep a job. Considering the objective evidence of impairment
in the file, the Board finds that the preponderance of
evidence does not indicate that the Veteran's PTSD disorder
was manifested by symptomatology more nearly approximating
that required for a 70 percent rating under Diagnostic Code
9411, from August 28, 2009.
Extraschedular ratings
The Board also has considered whether the Veteran is entitled
to a greater level of compensation on an extraschedular
basis. Ordinarily, the VA Schedule will apply unless there
are exceptional or unusual factors which would render
application of the schedule impractical. See Fisher v.
Principi, 4 Vet. App. 57, 60 (1993).
According to the regulation, an extraschedular disability
rating is warranted based upon a finding that the case
presents such an exceptional or unusual disability picture
with such related factors as marked interference with
employment or frequent periods of hospitalization that would
render impractical the application of the regular scheduler
standards. See 38 C.F.R. § 3.321(b)(1). An exceptional case
is said to include such factors as marked interference with
employment or frequent periods of hospitalization as to
render impracticable the application of the regular scheduler
standards. See Fanning v. Brown, 4 Vet. App. 225, 229
(1993).
Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-
step inquiry for determining whether a Veteran is entitled to
an extraschedular rating. First, the Board must determine
whether the evidence presents such an exceptional disability
picture that the available scheduler evaluations for that
service-connected disability are inadequate. Second, if the
scheduler evaluation does not contemplate the claimant's
level of disability and symptomatology and is found
inadequate, the Board must determine whether the claimant's
disability picture exhibits other related factors such as
those provided by the regulation as "governing norms."
Third, if the rating schedule is inadequate to evaluate a
Veteran's disability picture and that picture has attendant
thereto related factors such as marked interference with
employment or frequent periods of hospitalization, then the
case must be referred to the Under Secretary for Benefits or
the Director of the Compensation and Pension Service to
determine whether, to accord justice, the Veteran's
disability picture requires the assignment of an
extraschedular rating.
With respect to the first prong of Thun, the evidence in this
case does not show such an exceptional disability picture
that the available schedular evaluation for the service-
connected PTSD is inadequate. The Board notes that the
Veteran has expressed difficulty at work and, at the August
2009 VA psychiatric examination, the examiner found that she
had an inability to establish and maintain work
relationships. The Board, however, notes that Diagnostic
Code 9411 contemplates difficulties at work within its
criteria and that, said difficulties, are just one of the
criteria. As noted above, the Veteran's symptoms more nearly
match the criteria for a 30 percent rating prior to August
28, 2009; and a 50 percent rating from August 28, 2009.
Moreover, the record does not show that the Veteran has
required frequent hospitalizations for her PTSD. Indeed, it
does not appear from the record that he has been hospitalized
at all for that disability. Additionally, the Veteran has
indicated missing some work due to her PTSD disorder, and
also that she had been disciplined due to anger arising from
it. The record, however, indicates that the Veteran has
maintained employment throughout the pendency of this appeal.
Moreover, the record does not contain any evidence regarding
the Veteran's difficulties with work other than her accounts
expressed in her statements and treatment records. As such,
the Board finds that the evidence shows such an exceptional
disability picture to render the scheduler evaluations
assigned for the Veteran's knee disorders inadequate.
In short, the record does not indicate that this service-
connected disability on appeal causes impairment with
employment over and above that which is contemplated in the
assigned scheduler rating. See Van Hoose v. Brown, 4 Vet.
App. 361, 363 (1993) (noting that the disability rating
itself is recognition that industrial capabilities are
impaired). The Board therefore has determined that referral
of this case for extraschedular consideration pursuant to 38
C.F.R. § 3.321(b)(1) is not warranted.
ORDER
Prior to August 28, 2009, entitlement to an initial rating
greater than 30 percent for PTSD prior is denied.
From August 28, 2009, entitlement to a staged rating of 50
percent for PTSD, but not greater than 50 percent, is
granted.
____________________________________________
JAMES L. MARCH
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs